Werner v. Edmiston , 24 Kan. 147 ( 1880 )

The opinion of the court was delivered by

Brewer, J.:

This was an action brought under the 9th and 10th sections of the dramshop act, in which the defendant in error, plaintiff below, recovered a judgment of $2,600 against the plaintiff in error, for having caused the intoxication of her husband.

It appears from the affidavit of the bailiff, thé only testimony offered on the motion for a new trial, that he was present in the jury room during the deliberations of the jury, and that the amount of the verdict was ascertained and determined solely by adding the sums named by the respective jurors, and dividing the sum total by twelve. This was not done for purposes of consultation, but by distinct agreement that the result of these arithmetical processes should be the amount of the verdict, and it was immediately at the close of the calculation so written out and returned. This was error, and sufficient to compel a new trial. (Bailey v. Beck, 21 Kas. 465.) It is true the district court refused to permit the affidavit to be read upon the motion, but we think its ruling in this respect cannot be sustained. The following quotation from the case-made shows the ruling in respect to the affidavit, and the reasons therefor:

“The facts are, that the plaintiff objected to the reading of the same, on the ground that it was not filed with the motion for a new trial. The court ruled that as a matter of practice, the affidavit should be on file a reasonable time before the hearing of the motion for a new trial, to give opportunity for counter affidavits. The defendant insisting upon the court hearing the motion for a new trial at that time, the court refused to permit the affidavit to be rea,d — it appearing that the plaintiff Had no notice of the filing thereof until after the motion for a new trial was called up for decision.”

Now when notice of a motion is required, the statute provides that if affidavits are to be used, the notice shall state that fact. (Code, § 534.) But even then, it is not required 'that the affidavits be filed, but simply that notice be given that they are to be used. As to this motion, however, no notice is required, and certain of the grounds for a new trial must be sustained by affidavit. (Code, § 309.) The fact that a motion is filed including those grounds, is notice to the opposite party that affidavits sustaining them will be offered. And a party making a motion is under no obligation to disclose the testimony he may have to offer on the hearing thereof, any more than a party before trial to disclose the testimony he expects to produce on the trial. Neither has the court any power to require such a disclosure. The court may, either upon a trial or a motion, and upon each alike, if unexpected testimony be offered, for good reason postpone the further hearing to enable the opposing party to produce testimony in reply to that offered, but if the opposing party has no counter testimony, and can get none, he cannot prevent the introduction of that offered, simply on the ground that it was unexpected.

In the case at bar, if the facts stated in the affidavit were true, the defendant was entitled to a new trial; if they were not true, and the plaintiff could produce testimony to show their falsity, she should have made an application for time to produce such .testimony, but she could not prevent the defendant from offering his testimony, simply because she did not know what he was going to offer.

As this error compels a reversal of the judgment, we might stop here; but some-questions are raised which will have to be considered on the new trial, and we may as well dispose of them now. This will facilitate the proceedings on that trial. It is insisted that said §§ 9 and 10 are unconstitutional, because they contain matter foreign to that in the other sections of the act, and not expressed in the title to the act. The title of the act is, “To restrain dramshops and taverns, and to regulate the sale of intoxicating liquors.” The other sections contain provisions as to licenses, penalties for sales without license, prohibitions of sales upon certain days and to certain persons. Sec. 9 provides that any one who causes the intoxication of another shall be compelled to pay for his care while so intoxicated; and §10, that every person who is injured in his property or means of support by any intoxicated person, or in consequence of intoxication, may recover therefor of the person causing such intoxication.

Now it seems to us that these matters come fairly within the scope of the title. They name certain conditions upon which one may sell liquor. The act in substance says to a party that you must not sell without a license; that when licensed you must not sell on certain days or to certain persons; and that if you sell, you will be held liable for the iujury the liquor causes. Is not all this the regulation of the sale of intoxicating liquors? We think the district court properly overruled the objections of counsel in this respect.

Another question is, whether it must appear that the liquor sold by defendant was the sole cause of the intoxication. In other words, does the statute apply where it is shown that the intoxication was caused by two drinks of liquor, one sold by defendant and the other by another party? The language of the statute is, “shall cause the intoxication;” and the argument is, that unless the sale by defendant shall be the sole cause, if it is only a contributory cause, the statute does not apply. We do not agree with this view of the statute. Where the separate acts of two wrong-doers contribute to and jointly cause the wrong, each is responsible as though he were the sole wrong-doer. This is a universal law of torts, and applies ip the case of the sale of liquor as in all other cases. Of course the act must stand in the line of direct causation. If a glass of liquor is sold to-day which simply awakens an appetite, which months thereafter causes the party to seek and drink liquor to excess, such sale cannot be said to be in the line of direct causation; but where the liquor sold is part of that which directly produces the intoxication, we suppose the sale is within the statute, although it appears that other parties sold liquor which also contributed to the intoxication. In other words, it is sufficient if it appears that the liquor sold was either solely or with liquor sold by other parties at or about the same time, the direct cause of the intoxication.

Where two glasses of liquor are sold by two different parties, and intoxication follows therefrom, no analysis can accurately apportion the cause between the two sales, and the statute holds each responsible for the result caused by the two separate sales. If it be said that this casts large risks on the sale of liquor, for a sale of one drink to a man perfectly sober may be followed by a second sale to the same party by another person, and so no man be safe against the wrongful acts of a second vendor, we reply that- the statute invites no man to engage in the business of selling liquor. It prescribes the conditions, and if they seem hard to any one, he may decline entering into the business. It cannot be disguised that ■the general judgment is, that the sale of liquor carries risks to society, and if as protection against' such risks the lawmakers attach severe conditions to such sale, the courts have no alternative but to enforce such conditions. In Lawson’s monograph on the “civil remedy for injuries arising from the sale or gift of intoxicating liquors,” p. 20, it is said: “A seller of intoxicating liquors by which another is injured in person, property or means of support, is not released from liability, if a part of the liquors causing the intoxication was sold by others. He is liable if he contributed to the result.” (Woolheather v. Risley, 38 Iowa, 486; Fountain v. Draper, 49 Ind. 441; Hackett v. Smelsey, 77 Ill. 109; Emory v. Addis, 6 Ch. Legal News, 336; Stone v. Nickerson, 5 Allen, 29; Bodge v. Hughes, 53 N. H. 616; Boyd v. Watt, 27 Ohio St. 259; Roth v. Eppy, 16 Am. L. Reg., N. S., 111.) See especially the case from 27 Ohio St.

We are aware that in many of the states having statutes similar to ours, the language used is, “have caused or contributed to the intoxication,” or, “have caused the intoxication in whole or in part;” but while this may make the meaning of the legislature plainer, we think for the reasons indicated our statute must bear the construction we have placed upon it. Indeed, in some of the states referred to we find one section with language as quoted, and another with language as in ours.

Several other questions are presented and discussed by counsel for plaintiff in error in their briefs, (the defendant in error has filed no brief,) but we shall not pass upon them at present. They may not arise in the next trial.

The judgment will be reversed, and the case remanded with instructions to grant a new trial.

All the Justices concurring.